Evidence, Professor Curcio

Front 1

What is hearsay?

Back 1

pneumonic- S, O, T
(1) Out of court statements (writing or verbal) are defined as hearsay and are inadmissible if a party (2) seeks to have them admitted to establish that their content is true.

Front 2

why is hearsay excluded?

Back 2

its unreliable, not able to cross exam or observe the testifying witness

Front 3

4 Hearsay EXCLUSIONS (not exceptions)

Back 3

1. verbal acts
2. effect on listener
3. circumstantial evidence of the speaker's state of mind
4. prior inconsistent statements if used to impeach or rehabilitate

Front 4

Hearsay EXCLUSIONS for statements that are hearsay theoretically, but for policy reasons are allowed

Back 4

1. admissions by a party opponent
2. prior statements made by a witness presently testifying (who can be crossed)
a. prior inconsistent statements
b. prior consistent statements
c. prior ID's

Front 5

admissions by a party-opponent aren't hearsay when offered against that party. what are the various types of admissions?

Back 5

1. the party's own statement
2. an adoptive admission
3. a statement by a person authorized by that party
4. a statement by the party's agent or servant concerning a matter within the scope of and during the agency or employment

Front 6

Joe is a fire sprinkler installer who does a job at X club. a week later, he takes his kids to X club. the next day, X club burns down and P dies. Can the x club owner introduce Joes family outing as proof he must've felt the place was safe?

Back 6

yep, b/c the conduct was non-assertive. 801c- non-assertive conduct is NOT hearsay

Front 7

the weather is a material issue to a case. Ron offers to testify that he looked out the window that day and saw Jan open her umbrella. Hearsay?
what if Ron called out to Jan "is it raining out there?" and she opened her umbrella? hearsay

Back 7

no, because Jan's conduct was not assertive (not intended as communication).
Yep, her response is assertive conduct, as it was intended to be communication.

Front 8

B is arrested for DUI. at the station, the cop takes video of B slurring, and acting drunk. will the tape be admitted? (403, hearsay, relevancy)

Back 8

yes. its relevant, its probative value is not substantially outweighed by the possibility of unfair prejudice. its not hearsay because its not assertive- B didn't intend to communicate his drunkenness to anyone.

Front 9

D called P a thief. P sues for slander and wants to get the statement in. Hearsay?

Back 9

no. it not being offered to prove the truth of the matter asserted (that hes a thief). but only to show that the statement was made. this statement has a legal significance regardless of truth. (verbal act)

Front 10

Capt. survives the titanic sinking. Mate testifies that he told the captain "iceberg right ahead!". Hearsay?

Back 10

Yep... but if it were being offered to show he was on notice and not that an iceberg actually existed, it would not be hearsay. Also, it may get in under excited utterance or present sense impression.

Front 11

Hearsay exceptions

Back 11

present sense impression
excited utterance
then existing physical, emotional, mental condition or state of mind
mental diagnosis
recorded recollection
biz records or absence of biz records
public records or absence of public records
ancient document
learned treatises
unavailable declarant
former testimony
dying declaration
statements against interest
forfeiture of wrongdoing
residual exception

Front 12

Relevance defined

Back 12

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be w/out the evidence.

Front 13

rule 403

Back 13

relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, msileading the jury or waste of time.

Front 14

rule 404- Char evid isn’t admissible to prove that a person acted in conformity. list 3 exceptions:

Back 14

1. Criminal- An accused may offer evidence of his good character if it is pertinent to the crime and the prosecution may rebut (he opened the door so the prosecutor can step in)
2. Criminal- An accused may offer evidence of his alleged victims bad character.
3. Evidence of a witness’s character for truthfulness or untruthfulness may be offered.

Front 15

reputation v. character

Back 15

character- the nature of a person, his disposition generally, or his disposition in respect to a particular trait.
reputation- the community estimate of him.

Front 16

in all cases in which evidence of character is admissible for purpose of proving conformity, proof may be made by _a_______ or ____b_____. ___c____ is not admissible.

Back 16

a. testimony as to reputation
b. opinion testimony
c. specific instances
(note: on cross of a reputation or opinion witness, inquiry is allowed onto relevant specific instances)

Front 17

specific instances are admissible to prove____________.

Back 17

character when character is an essential element of a charge, claim, or defense,

Front 18

True or false
When character is in issue in a civil case, evidence of the pertinent character trait is admissible and may be proven by reputation, opinion, and specific instances of conduct.

Back 18

TRUE!!!

Front 19

what is propensity evidence A.K.A. circumstantial character evidence?

Back 19

Evidence of a propensity to behave in a certain way which, in turn, makes it more likely that such behavior occurred on the occasion in question

Front 20

when can propensity be used in civil cases?

Back 20

to impeach or support the character of a witness for truthfulness (as provided in rules 607, 608, 609, 404 (a)(3).

Front 21

evidence of other crimes, wrongs, or acts may be admissible for other purposes such as:

Back 21

proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, conspiracy, or accident.(non exhaustive)

Front 22

other crimes for identity purposes. ct must make a determination that based solely on the evidence comparing the past acts and the charged offense, a reasonable juror could conclude that the same person committed both crimes. what are the 2 factors cts use to determine this?

Back 22

a. Distinctiveness of facts that make the crimes unique
b. Proximity of the crimes in space and time

Front 23

evidence of other crimes is inadmissible for the purpose of showing_______________.

Back 23

a disposition or propensity to commit crimes

Front 24

Habit v. character

Back 24

1. Habit- ones regular response to a repeated specific situation
a. Some cts restrict this to non-volitional activity that occurs with invariable regularity
b. habit for corp.- routine practices
2. Character- refers to a generalized description of a person’s disposition or of the disposition in respect to a general trait

Front 25

3 factors, is it a habit?

Back 25

Prove the existence of a pattern of repeated behavior
a. Frequency
b. regularity
c. autonomous

Front 26

method of proving habit

Back 26

specific instances or opinion

Front 27

true or false, rule 412
in criminal proceeding, the intro of reputation, specific instances, or opinion evidence of an alleged sexual victim involving other sexual behavior offered to prove the victims predisposition is admissible.

Back 27

False!!! not admissible for impeachment, substantive or otherwise

Front 28

when is the ONLY (3) time a victims sexual past behavior (specific instances) can be introduced in a criminal proceeding?

Back 28

1. when it is offered to prove that a person other than the accused was the predator or
2. to prove it was consentual, or
3. if the exclusion would somehow violate the constitutional rights of the defendant

Front 29

in a civil proceeding, evidence of a victims sexual behavior is admissible to prove the alleged victim's reputation only if.....

Back 29

the alleged victims reputation has been placed in controversy by the alleged victim

Front 30

can evidence of an accuseds (who is on trial for sexual convictions) prior commission of sexual offenses be introduced in a criminal trial?
if so, what is the procedure?

Back 30

you betcha!

Prosecutor must disclose the info to the D 15 days prior to trial

Front 31

In a criminal or civil case involving child molestation, evidence of the D’s commission of another offense or sexual assault is ____________.

Back 31

admissible

Front 32

personal knowledge v. hearsay
examples of each

Back 32

PK- the witness is testifying to an event and they acknowledge being distant in location at the exact time

hearsay- the witness was told of the event by another person

Front 33

Rule 701 Allows a lay witness to testify in the form of an opinion or inference when the opinion or inference: 3 things

Back 33

1. it is rationally based on the perception (1st hand) of the witness and
2. it would help the factfinder to understand clearly the testimony or determine a fact in issue and
3. the testimony is not based on scientific, technical, or other specialized knowledge

Front 34

before admitting expert testimony, the following 3 conditions must be met:

Back 34

1. The witness qualifies as an expert
2. The subject matter is an appropriate one for expert testimony
3. The testimony will assist the fact finder
4. The opinion is sufficiently reliable.

Front 35

Real evidence may be authenticated in three ways—

Back 35

1. by identification of a unique object,
2. by identification of an object that has been made unique, and
3. by establishing a chain of custody

Front 36

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: 12 answers! yikes!

Back 36

1. Domestic public docs under seal
2. Domestic public docs not under seal
3. Foreign public docs
4. Certified copies of public record
5. Official publication
6. Newspapers and periodicals
7. Trade inscriptions and the like
8. Acknowledged docs
9. Commercial paper and related docs
10. Presumptions under acts of congress
11. Certified domestic records of regularly conducted activity
12. Certified foreign records of regularly conducted activity

Front 37

whats the best evidence rule?

Back 37

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

Front 38

A duplicate is admissible to the same extent as an original unless (2):

Back 38

1. a genuine question is raised as to the authenticity of the original or
2. in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Front 39

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: (4)

Back 39

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original not obtainable.
(3) Original in possession of opponent
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

Front 40

4 questions to ask with character evidence?

Back 40

what is it being offered to prove?
What method is the evidence being offered in? (reputation, etc)

Front 41

civil cases and propensity

Back 41

can't use propensity evidence for civil case

Front 42

criminal case and propensity

Back 42

the accused can take the initiative to show his good character with propensity evidence and then and only then will the prosecution be allowed to respond (remember impeachment is different not offered to show a propensity)

Front 43

when can these be used: reputation, opinion, specific instances

Back 43

* criminally accused uses propensity to show his good character (R,O)- prosecutor may respond by crossing D's witness by inquiring about specific acts which would tarnish the rep of the accused
*civil cases character directly at issue (R,O,S)
*If the victims character is relevant to a defense by the accused, D can take the initiative to show victims bad character ex. self defense.attack character to show victims rep. prosecutor can rebut, R,O
* D calls witness who testifies to specific act however its is offered to show state of mind of accused. ex. V killed 3 people W was present, D is claiming self defense

Front 44

D calls W to the stand who testifies to D's good character. P, on cross, rebuts with specific instance inquiry, W lies. Whats P's recourse?

Back 44

Suck it up. extrinsic evidence not allowed. BUT P can call his own bad reputation/opinion witness

Front 45

victims sexual history to infer consent be shown?

Back 45

nope, rape shield statute
if accused is charged with sex crime there can generally be no evidence allowed to show witness' sexual disposition.

Front 46

sexual specific instances allowed on 3 occasions

Back 46

1. to show 3rd party was the source of semen, injury, or other physical
2. the D can show prior acts of consensual sexual activity between the victim and himself
3. if constitutional rights of accused require this evidence be admitted (6th amend.)
(must give notice, in camera closed hearing, 403 balancing)

Front 47

True or false
the prosecution can NEVER show any prior acts of misconduct by the accused in a criminal case unless and until the D opens the door to show his good character.

Back 47

False!
the prosecution cant take the initiative to show any bad character evidence of any kind if the sole purpose is to show criminal disposition so as o infer guilt from that disposition. If it can be relevant for non disposition, it will be admissible. ex. D illegally gambles, lost money. stole money from his bank, falsifies books, embezzles, steals key, burns the bank. He is on trial for arson only. the others can come in to show motive for arson, the key can prove opportunity. GOTTA KNOW RELEVANCE, why's it being offered?

Front 48

what issues are there that allow in prior crimes or misconduct (specific acts) by an accused in a criminal case

Back 48

*MIMIC*4
motive
intent
modus operendi
identity
common plan and scheme
*** remember 403 despite mimic relevancy

Front 49

issues that allow in prior crimes or misconduct (specific acts) by an accused in a criminal case
Motive ex.

Back 49

D kills wife, then a detective. Kills detective who was investigating wife's murder. Shows motive for killing detective

Front 50

issues that allow in prior crimes or misconduct (specific acts) by an accused in a criminal case
intent ex.

Back 50

specific intent crimes. charged with knowingly receiving stolen goods. pros. can show he received stolen goods 6 times before.

Front 51

issues that allow in prior crimes or misconduct (specific acts) by an accused in a criminal case
identity is in issue ex.

Back 51

Cops find a body gun next to it. gun traced to bob. bob says gun was stolen 2 yrs ago by J. in the murder case prosecution can show the prior burglary to prove identity

Front 52

issues that allow in prior crimes or misconduct (specific acts) by an accused in a criminal case
modus operendi ex.

Back 52

a distinctive and unusual crime. Zodiac killer leave weird symbol, prosecutor can show accused did it before in the same unusual way

Front 53

issues that allow in prior crimes or misconduct (specific acts) by an accused in a criminal case
ex.common plan and scheme

Back 53

day before bank robbery, D stole a truck used in the bank robbery. all part of the same scheme, preparation

Front 54

issues that allow in prior crimes or misconduct (specific acts) by an accused in a criminal case
ex. 403 no no although mimic

Back 54

D charged with bank robbery. prosecutor wants to show motive for robbery. Motive is D needed money b/c he just got out of jail for sexual abuse of kids and he needed money for drugs. judge may say probative value is substantially outweighed by unfair prejudice

Front 55

the prosecution cant take the initiative to show any bad character evidence of any kind if the sole purpose is to show criminal disposition so as to infer guilt from that disposition. 2 exceptions!

Back 55

in civil or criminal cases charging the D with sexual assault or child molestation, prior acts maybe shown by prose or plaintiff. D need not open any doors, there needn't been a conviction or complaint

Front 56

general authentication rule

Back 56

a writing is not permissible if it hasn't been authenticated (foundation must be laid)

Front 57

general best evidence rule

Back 57

secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists, and is not unavailable due to destruction or other circumstances indicating unavailability.

Front 58

Generally, authentication can be shown in one of two ways

Back 58

First, a witness can testify as to the chain of custody through which the evidence passed from the time of the discovery up until the trial. Second, the evidence can be authenticated by the opinion of an expert witness examining the evidence to determine if it has all of the properties that it would be expected to have if it were authentic.

Front 59

Best evidence requires that a party seeking to prove the content of a writing must either: (2)

Back 59

1. produce the original
or
2. account satisfactorily for its absence. if excuse is reasonable then secondary may be ok

Front 60

best evidence applies when:

Back 60

1. the writing is itself a legally operative document. creates or destroys a legal issue. Ex. Deed, a will
2. common: where the witness sole knowledge comes from a writing (witness lacks personal knowledge) ex. D killed wife. letter was found to D saying wife cheated (motive).

Front 61

D killed wife. Cops found letter from some dude saying she was cheating on D. Had D's tears, fingerprints, drool on it. Cop wants to testify to the contents of the unavailable letter. What objections?

Back 61

objection no authentication- how do we know where this came from? relevance is that he read it, doesn't depend on authorship. only relevance is was it in his possession did he have an opportunity to read it??

objection hearsay: OOCS, not being offered to prove wife was cheating. offered to show effect on hearer.

objection, not best evidence: sustained! letter must be produced or a good excuse as to why its not available

Front 62

when doesn't best evidence apply

Back 62

1. when the fact to be proved has an existence independent of the content of the writing
2. collateral document exception

Front 63

Issue, did X make payment. W says, I saw X give Y $1,000 and X got a receipt. Objection best evidence?

Back 63

overruled. we aren't proving the content of a receipt, just the payment. we have a witness to prove that fact.

Front 64

Issue did X make payment. W says yes X made payment, I saw the receipt. Objection best evidence?

Back 64

may be sustained. explain where it is

Front 65

modifications of the best evidence rule. secondary is ok (2)

Back 65

1. public record
2. volumunous document- summary is ok if the originals would be admissible and they are available to the opponent

Front 66

P in discovery gets 15 years of records from D corp. P sees a pattern of discrimination. You proceed to show a summary through the expert witness. admissible? under what theory?

Back 66

admissible as admissions of a party AND qualify as business records

Front 67

duplicate is admissible unless....

Back 67

1. a genuine question is raised about authenticity
2. it would be unfair to admit the duplicate w/o an explanation of what happened to the original

Front 68

4 requirements for a witness

Back 68

perception
memory
communication
sincerity

Front 69

4 requirements for a witness: perception, memory, communication, sincerity
boiled down to 2!

Back 69

the witness have communicable personal knowledge
the witness must take the oath or affirmation

Front 70

what does unavailable mean?

Back 70

claim of privilege, refusal to testify (pleading of the 5th must have been OVERRULED), lack of memory, death or illness, unable to procure testimony

Front 71

exceptions to hearsay if and only if the Plaintiff is unavailable

Back 71

1. former testimony- i. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with the law,
ii. if the party against whom the testimony is now offered, or,
iii. in a civil action or proceeding, a predecessor in interest,
iv. had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination
2. dying declaration in a homicide case concerning the cause of the impending death
statements against the interest- i. A statement which at the time it was made is so opposite of the declarents interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
3. statements of family history
4. forfeiture by wrongdoing- i. if someone has procured the declarant’s unavailability by wrongdoing, they cannot object to the introduction of the hearsay statement.

Front 72

excited utterance v. present sense impression

Back 72

excited utterance is broader than a present sense impression since it (1) need not describe or explain the startling event or condition; it need only relate to it, and (2) need not be made contemporaneously with, or immediately after, the startling event. It is sufficient if the stress of excitement created by the startling event or condition persists as a substantial factor in provoking the utterance.

Front 73

then existing mental condition stipulations

Back 73

when declarant is speaking about physical condition, emotion or mental state in the present tense or talking about future act - it comes in - if talking in past tense - it doesn’t come in under 803(3) (exception = wills cases)

Front 74

question to ask yourself for statements for purposes of medical diagnosis or treatment exclusion to hearsay

Back 74

a. Whether the statements were reasonably considered by the declarant as being pertinent to the diagnosis or treatment sought?
i. Ex. A statement made to a dr. that the D’s car struck the P’s car was admissible. BUT, statements concerning who ran the red light or the fault of the parties are not pertinent to diagnosis or treatment
ii. Something that could explain the condition is all that’s necessary.
iii. But statements by a child abuse victim to a Dr. are OK b/c they provide insight into the psychological trauma
1. The child has to understand that they have to tell the truth in order to get taken care of. Some courts say this is inferred

Front 75

recorded recollection

Back 75

a. A memorandum or record
b. concerning a matter about which a witness once had [first hand] knowledge
c. but now has insufficient recollection to enable the witness to testify fully and accurately,
d. shown to have been made or adopted by the witness
e. when the matter was fresh in the witness' memory
f. and to reflect that knowledge correctly.

Front 76

records of regularly conducted activity

Back 76

1. record was made and kept in the course of a regularly conducted biz activity
2. Made at or near time of event
3. By/from info from person w/knowledge(biz's duty to report)
4. Writing was made and kept in course of regular business activity
Caveat - inadmissible if source of info or circumstances of prep indicate a lack of trustworthiness;

Front 77

confrontation clause

Back 77

i. 6th amendment: “in all criminal procedures, the accused shall enjoy the right…to be confronted with the witnesses against him”.
ii. Supreme Court ruled that the Confrontation Clause bars the admission of "testimonial" statements unless the witness is available for cross-examination.

Front 78

confrontation clause

definition of testimonial and non=testimonial

Back 78

a. non-testimonial: when made in the course of police interrogation under circumstances objectively indicating the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
i. ex. Call 911
b. testimonial (not admitted): when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to est. or prove past events potentially relevant to later criminal prosecution.
i. Statements a declarant would reasonably expect to be used prosecutorially

Front 79

methods of impeachment

Back 79

untruthful character
bias
prior inconsistent statements
defects of capacity
contradiction